Kerala High Court
Arun vs State Of Kerala on 23 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
CRL.MC NO. 5442 OF 2023
CRIME NO.561/2008 OF ADOOR POLICE STATION, PATHANAMTHITTA
AGAINST C.P. NO.71/2019 NOW PENDING AS LP NO.9/2022 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I, ADOOR
PETITIONER/2ND ACCUSED :
ARUN
AGED 39 YEARS
S/O SOMARAJAN, SANTHIBHAVANAM,
KOTTAPPURAM, PANNIVIZHA MURI,
ADOOR, PIN - 691525
BY ADV SERGI JOSEPH THOMAS
RESPONDENTS/STATE/CW1 :
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 VIJAYAN
AGED 48 YEARS
S/O SASIDHARAN, RESIDING AT BINDU BHAVANAM,
CHOORAKODE P.O, ERATHAU, ADOOR,
PATHANAMHITTA DISTRICT,, PIN - 691551
SRI.VIPIN NARAYAN, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
23.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. No.5442 of 2023 2
ORDER
The instant petition is filed under Section 482 of the Code of Criminal
Procedure ("the Code") for the sake of brevity.
2. The petitioner herein is the accused in LP No.9/2022 on the files
of the Judicial Magistrate of First Class-I, Adoor. In the said case, he is the
accused of having committed the offences punishable under Sections 143,
147, 148, 149, 341, 424, 294(b), 427 and 308 of the IPC. The aforesaid
case has arisen from Crime No.561 of 2008 of the Adoor Police station. In the
final report laid before the jurisdictional court, five persons were arrayed as
the accused and the petitioner herein was the 2nd accused.
3. The petitioner failed to appear before the trial court and hence
the case proceeded against accused Nos.1, 3 and 4. By Annexure-A2
judgment dated 20.7.2017, the accused who faced trial were found not guilty
and were acquitted of all charges under Section 232 of the Cr.P.C. The case
against the petitioner was split up and refiled. The petitioner states that
during the pendency of the proceedings he has resolved the dispute with the
informant and he has filed an affidavit before this Court stating that he has no
grievance.
4. It is on the basis of the acquittal of the co-accused that this
petition is filed seeking to quash the proceedings on the ground that the
substratum of the case against the petitioner has been shattered. The
petitioner also contends that the de facto complainant has also filed
Annexure-A3 affidavit asserting that he has no subsisting grievance against
the petitioner and that he has no objection in quashing the proceedings.
5. Sri. Sergi Joseph Thomas, the learned counsel appearing for the
petitioner, has relied on the judgments rendered by this Court in Moosa v.
Sub Inspector of Police1 [2006 (1) KLJ 349], Abbas T.K. v. State of
Kerala [2013 KHC 336], Jalalu Rajan and Anr v. State of Kerala [2013
KHC 177] and Ashraf Kancheriyil v. State of Kerala [2011 (2) KHC 812]
and it was urged that the continuance of proceedings against the petitioner
herein would serve no purpose. Reliance is also placed on State of M.P. v.
Laxmi Narayan,2 Gian Singh v. State of Punjab3, Narinder Singh v.
State of Punjab4, and it is argued that on the basis of the affidavit filed by
the party respondent, this Court will be justified in terminating the
proceedings.
[(2019) 5 SCC 688]
(2012) 10 SCC 303
2014 (6) SCC 466
6. I have heard the learned Public Prosecutor.
7. I have gone through the Annexure-A1 final report and
Annexure-A2 judgment of acquittal rendered by the court below. It is borne
out from Annexure-A2 that none of the prosecution witnesses had deposed in
tune with the prosecution case. The Court below, after meticulous analysis of
the evidence on record, came to the conclusion that the accused were entitled
to acquittal under Section 232 of the Code. As held by a three-Judge Bench of
this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552),
though the reasoning of the judgment contained or appreciation of evidence
in the case of a co-accused therein are not grounds to attract any relief under
Section 482 of the Code of Criminal Procedure, a case where the substratum
of the case is lost, is an exception to the above rule. In the case on hand, the
de facto complainant has also filed an affidavit stating that he has no
subsisting grievance.
8. I am of the firm view that no purpose is going to be served by
directing the petitioner herein to undergo the ordeal of a trial at this stage.
It can only be a futile exercise and will only serve to waste precious judicial
time, which can be used for more productive work. The prospects of
conviction are nil in view of the affidavit filed by the de facto complainant.
Furthermore, no evidence of worth could be adduced by the prosecution
during the previous trial. In that view of the matter, I am of the considered
opinion that this Court will be well justified in invoking the powers under
Section 482 of the Code and in quashing the proceedings.
Resultantly, this petition is allowed. Annexure-A1 final report in Crime
No.561 of 2008 of the Adoor Police Station and all further proceedings
pursuant thereto against the petitioner now pending as L.P. No.9/2022 (C.P.
No.71 of 2019) on the files of the Judicial Magistrate of First Class -I, Adoor,
are quashed.
Sd/-
RAJA VIJAYARAGHAVAN V.,
JUDGE
NS
APPENDIX OF CRL.MC 5442/2023
PETITIONER ANNEXURES :
Annexure A1 THE CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO. 561/2008 OF ADOOR POLICE
STATION, WHICH IS NOW PENDING AS
L.P.NO.9/2022 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT - 1, ADOOR
Annexure A2 TRUE COPY OF THE JUDGMENT DATED 20/07/2017
IN S.C. NO.232/2015 OF THE ADDITIONAL
SESSIONS JUDGE -IV, PATHANAMTHITTA
Annexure A3 THE ORIGINAL OF THE AFFIDAVIT DATED
09/06/2023 SWORN BY THE SECOND RESPONDENT
STATING THE SETTLEMENT OF ALL THE DISPUTES
